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Sunday, November 30, 2014

Co-Occupant consent to search valid. State v. Lamb 217 NJ 442 (2014)

In this
appeal, the Court considered the validity of a warrantless search of a house,
specifically addressing whether the knowing and voluntary consent by an
occupant to search a premises is constitutionally effective against a third
party when an absent co-occupant has objected to the search.

Co-Occupant consent to search valid. State v. Lamb
217 NJ 442 (2014)

After a shooting, mother could give
permission to search her home where son lived.

Under
the circumstances of this appeal, an occupant’s knowing and voluntary consent
to search a premises is constitutionally effective against a third party and is
not nullified by the prior objections of an absent co-occupant whose absence is
not the result of a police effort to avoid an objection.

Decided May 19, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a
unanimous Court.

In this appeal, the Court considers the validity of a
warrantless search of a house, specifically addressing whether the knowing and
voluntary consent by an occupant to search a premises is constitutionally
effective against a third party when an absent co-occupant has objected to the
search.

Outside of a home in the community where defendant
allegedly lived, Pennsville Township Police Detective Greg Acton located two
cars matching the description provided by the victims. Acton and another
officer knocked on the door multiple times while defendant’s stepfather, Steven
Marcus, yelled that they should leave. Although Marcus ultimately opened the
door, he insisted defendant was not there and again demanded that the officers
leave the premises. Acton removed Garcia from the house when she approached the
front door. She told Acton that defendant was hiding under the bed in the room
they shared and confirmed that she had been driving the car, that she saw the
gun, and that defendant fired a shot into the air. According to Garcia, in
addition to defendant and Marcus, three young children and defendant’s mother,
Karen Marcus, were in the house.

Police called the residence in an effort to persuade
either defendant or Marcus to come outside. Once Marcus left the home, he was
placed in custody and removed from the area. At the insistence of his mother,
defendant also left and was arrested. Acton then spoke to Karen, who later
admitted that she signed a consent-to-search form after being told the police
would obtain a search warrant if she refused. She explained that one of her
young children was distraught, she did not want her new home torn apart in a
search, and she was upset about her son’s behavior. Karen took the officers to
defendant’s room, where they found a handgun.

Defendant was indicted on two counts of attempted
murder, four counts of aggravated assault, one count of unlawful possession of
a handgun, and one count of possession of a handgun for an unlawful purpose. He
moved to suppress the evidence seized from his bedroom, arguing that Karen’s
will was overborne by police. The trial court denied the motion, finding that
Karen acted voluntarily and without coercion. The court noted that although
Karen undoubtedly was upset and fearful, these emotions did not overwhelm her
ability to consent to a search. Moreover, the court concluded that the police
had no obligation to leave the premises as directed by Marcus, explaining that
his earlier refusal to permit entry did not nullify Karen’s subsequent consent.
Defendant entered a conditional guilty plea to second-degree unlawful
possession of a handgun and was sentenced to a five-year prison term subject to
three years of parole ineligibility.

Defendant appealed the denial of his motion to
suppress. The Appellate Division affirmed, finding that Karen knowingly
consented to the search. It agreed that her consent was not nullified by
Marcus’s earlier refusal, emphasizing that Marcus was not present when Karen
consented, his refusal was not contemporaneous, and there was no evidence he
was removed from the home to avoid his objection. The Court granted defendant’s
petition for certification limited to the issue of whether consent by an
occupant to search a premises is constitutionally effective against a third
party when an absent co-occupant has objected to the search. 213 N.J.
531 (2013).

HELD: Under the
circumstances of this appeal, an occupant’s knowing and voluntary consent to
search a premises is constitutionally effective against a third party and is
not nullified by the prior objections of an absent co-occupant whose absence is
not the result of a police effort to avoid an objection.

1. Appellate courts reviewing the grant or denial of a
motion to suppress are required to uphold the trial court’s factual findings
when supported by sufficient credible evidence, reversing only when demanded by
the interests of justice. Deference is not given to a trial court’s
interpretation of the law, which is reviewed de novo.

2. Under the automatic standing rule, virtually all
defendants are permitted to contest a search or seizure where they have either
a possessory, participatory or proprietary interest in the place searched or
property seized, or if possession of the seized evidence is an essential
element of guilt. Here, defendant has automatic standing to contest the search
and seizure since he clearly had a possessory interest in the seized handgun,
possession of which is an essential element in several of the charged offenses.

3. The preference for police officers to obtain a
warrant prior to searching an individual’s home arises from the Fourth
Amendment of the United States Constitution and Article I of
the New Jersey Constitution, which guarantee the right to be free of
unreasonable searches and seizures in one’s home. Where consent to search is
freely and voluntarily given, it is a recognized exception to the warrant
requirement. If multiple people reside in the same home, any occupant with
common authority over the premises or effects sought to be inspected may
voluntarily consent to a lawful search. However, a co-occupant’s consent is
insufficient basis for a reasonable search if a potential defendant with
self-interest in objecting is physically present and objects. Georgia v.
Randolph, 547 U.S. 103, 121 (2006). In contrast, a potentially
objecting occupant who is nearby but not part of the conversation need not be
considered so long as he or she has not been removed by police for the purpose
of avoiding a possible objection. Id. at 121-22. Recently, in Fernandez
v. California, 571 U.S. ___, ___ (2014), the Supreme Court
underscored the limited scope of Randolph, holding “that an occupant who
is absent due to a lawful detention or arrest stands in the same shoes as an
occupant who is absent for any other reason.” Since it would be inconsistent
with the narrow exception in Randolph, the Supreme Court also declined
to place a durational limit on an objection’s effectiveness. Id. at ___.
In New Jersey, no prior cases have considered the constitutionality of a search
as to a third occupant against whom the government wished to use the seized
evidence when the search was conducted with consent of one co-occupant subject
to the contemporaneous objection of another.

4. Here, the focus of the challenge is whether Karen’s
consent was overridden by Marcus’s prior strenuously expressed demands that the
police leave the premises. The Court concludes that the rule announced in Randolph
does not render Karen’s consent invalid and the search unreasonable. The Randolph
holding is very narrow and emphasizes that a search predicated on the consent
of one occupant over the objection of another renders the warrantless search
constitutionally infirm only as to the objecting occupant. Thus, the search
here is not unreasonable as to defendant even in the face of Marcus’s demands.
Moreover, there was no suggestion that Marcus renewed his objection after
leaving the house, and the record likewise provides no support for a conclusion
that the police engineered the departures of Marcus or defendant in order to
prevent them from objecting to the warrantless search of defendant’s room. In
fact, the police had probable cause to arrest defendant for the earlier
shooting and to detain Marcus once he left the house. Any doubt that the police
did not comport with the limited holding in Randolph is resolved by Fernandez,
supra, which places an occupant who is absent due to a lawful detention
or arrest in the same position as any other absent occupant. 571 U.S. at
___. Since Marcus’s lawful removal nullified his earlier objection, Karen had
full authority to consent to the search. The Court also recognizes that the
circumstances here were infused with exigency since the home was in close
proximity to other residences and Karen was inside with three small children
and a loaded gun. The record attests to a reasonable police response, with no
suggestion that any occupant’s absence was contrived to avoid a potential
objection to the search. Karen provided knowing and voluntary consent,
rendering the warrantless search reasonable under the circumstances of this
appeal.